IN THE SUPREME COURT OF FLORIDA

Transcription

1 IN THE SUPREME COURT OF FLORIDA CHICAGO TITLE INSURANCE COMPANY, AMERICAN PIONEER TITLE INSURANCE COMPANY, FLORIDA LAND TITLE ASSOCIATION, ATTORNEYS TITLE INSURANCE FUND, INC., FLORIDA ASSOCIATION OF INDEPENDENT TITLE AGENTS, INC., STEWART TITLE GUARANTY COMPANY, COMMONWEALTH LAND TITLE INSURANCE COMPANY, LAWYERS TITLE INSURANCE CORPORATION, and FIRST AMERICAN TITLE INSURANCE COMPANY, Appellants/Cross Appellees, vs.case NO.: 95,312 S. CLARK BUTLER, FLORIDA HOME BUILDERS ASSOCIATION, NATIONAL TITLE INSURANCE COMPANY and the FLORIDA DEPARTMENT OF INSURANCE, Appellees/Cross Appellants. On Review of a Final Declaration by the Circuit Court of the Second Judicial Circuit, Leon County, As Certified by the District Court of Appeal, First District, State of Florida, as Requiring Immediate Resolution Statement of Limited Purpose on Behalf of Appellee/Cross Appellant, Florida Department of Insurance Daniel Y. Sumner, General Counsel (Fla. Bar No ), S. Marc Herskovitz, Senior Attorney (Fla. Bar No ), Division of Legal Services, Florida Department of Insurance, 612 Larson Building, Tallahassee, Florida , (850)

2 TABLE OF CONTENTS PAGE Table of Contents... i Table of Citations ii Statement of Limited Purpose Certificate of Service i

3 TABLE OF CITATIONS STATUTES PAGE Section , Florida Statutes... 2 Section (2), Florida Statutes... 1,2 Section (2)(c), Florida Statutes... 2 CHAPTER LAWS Chapter , Laws of Florida... 2 RULES Rule , Florida Administrative Code... 2 Rule (13)(a), Florida Administrative Code... 2 ii

4 STATEMENT OF LIMITED PURPOSE The 1. Department of Insurance, a party-defendant in the trial court, has been designated as an Appellee/Cross-Appellant by the First District Court of Appeal by virtue of not taking an appeal from the Circuit Court s Final Judgment and Declaration dated February 26, The Department files this statement for the limited purpose of clarifying one point made in the Initial Brief of the Appellants made on Page 40 of the Initial Brief, which may be somewhat misleading. In this regard Appellant s Brief indicates: Nowhere in (2), which specifies the factors DOI is to consider when setting the risk premium, is there any reference to any commission. Nor does that term appear in Rule (13)(a). More importantly, nowhere does the statute authorize title insurance rates to contain any amount for the act of producing a customer. (Initial Brief at 40)(Emphasis supplied). The Department disagrees with the highlighted statement. Section (2), Florida Statutes, provides: In adopting premium rates, the department must give due consideration to the following: (a) The insurers' loss experience and prospective loss experience under insured closing service letters, search and examination services, and policy liabilities. 1

5 (b) A reasonable margin for underwriting profit and contingencies, including contingent liability under s , sufficient to allow insurers and agents to earn a rate of return on their capital that will attract and retain adequate capital investment in the title insurance business. (c) Past expenses and prospective expenses for administration and handling of risks. (d) Liability for defalcation. (e) Other relevant factors. ), Florida Statutes, requires the Department to consider prospective administrative expenses in adopting premium rates. This statutory section was undisturbed by the enactment of Chapter , Laws of Florida. r title insurance premiums, in accordance with Section , Florida Statutes, and Rule , Florida Administrative Code, the Department has considered the expense of producing business to be an administrative expense described in Section (2)(c), Florida Statutes. e of setting title insurance rates, the Department has considered some portion of the risk premium retained by the agent to include the production of a customer. This is true regardless of whether Section (2), Florida Statutes and/or Rule (13)(a), Florida Administrative Code, specifically refer to a commission. 2

6 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail to: William H. Hughes, III, Esquire George P. Daniel, Esquire Kevin X. Crowley, Esquire American Pioneer Title Pennington, Moore, et al. Insurance Company 215 South Monroe St., 2 nd Floor 493 Semoran Boulevard Tallahassee, Florida Casselberry, Florida Lee Huszagh, Esquire Zollie M. Maynard, Esquire Florida Land Title Association William C. Owen, Esquire 249 East Virginia Street Panza, Maurer, Maynard & Neel, P.A. Tallahassee, Florida South Monroe Street, Ste. 310 Tallahassee, Florida Douglas A. Mang, Esquire Michael E. Marder, Esquire Wendy Russell Wiener, Esquire Stephanie A. Yelenosky, Esquire Mang Law Firm Greenspoon, Marder, et al. 660 East Jefferson Street 135 W. Central Boulevard, Ste Post Office Box Orlando, Florida Tallahassee, Florida Robert Pass, Esquire Thomas Guilday, Esquire Mark A. Brown, Esquire Huey, Guilday & Tucker, P.A. Davisson Dunlap, Esquire P.O. Box 1794 Carlton, Fields Tallahassee, Florida Post Office Drawer 190 Tallahassee, Florida Benjamin K. Phipps, Esquire P.O. Box 1351 Tallahassee, Florida Keith Hetrick, Esquire Florida Home Builders 201 Park Avenue Tallahassee, Florida

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8 this day of August, 1999, and that the size and style of the print used herein is 14 point proportionally spaced Times New Roman type. S. Marc Herskovitz 5